240 A.D. 422 | N.Y. App. Div. | 1934
This suit is brought by the plaintiff on behalf of itself and all other creditors to set aside the transfer of property of the defendant debtors, Eckhardt Berman Furniture Co., Inc., and Morris Berman, to defendants Sussman and Eckhardt Berman Corporation. Plaintiff’s status as a creditor is set up in the complaint and is based on the terms of a written lease. Under this lease Eckhardt Berman Furniture Co., Inc., and Morris Berman, the appellant, are said to owe the plaintiff $11,163.44.
The counterclaim in the present action was attacked as insufficient on a prior motion made at Special Term and at that time it was decided that the counterclaim • stated a cause of action. That order was affirmed by this court. (239 App. Div. 819.)
The learned justice at Special Term who decided the present motion declared, however, that the following clause in the lease barred the counterclaim: “ If the demised premises shall be abandoned or in the event of a cancellation or termination of this lease, either by operation of law, issuance of a warrant of dispossess, notice of termination as above provided, of otherwise, for any cause whatsoever, except condemnation by public authority, the lessees shall nevertheless remain hable to the lessor in a sum equal to the fixed rent and additional rent herein reserved for the balance of the term herein originally demised.”
With this contention we are unable to agree. In Cornwell v. Sanford (222 N. Y. 248) the Court of Appeals held that a final order which has been procured by the landlord on insufficient grounds justifies the tenant in forthwith vacating the premises. He is not compelled to wait until a warrant is issued. The court said (at p. 252): “ The cancellation was not effected by any statute, but was the legitimate and inherent effect of instituting and conducting to the making of the final order the summary proceedings, and the removal on the part of the defendant. Judicial decisions have uniformly held that the moving by the tenant from the leased premises, enabling thereby the landlord to take peaceable possession
The effect of the order finally made in favor of the tenant is not to eradicate the wrongful act of the landlord and so enable it to claim full rent thereafter. The effect is on the contrary to enable the tenant to treat the wrongful act of the landlord as a complete breach and to exercise its privilege to assent to a termination of the lease. The tenant, it is true, has other options, but if it chooses to stay out of possession and treat the lease as at an end, it may do so. The survivorship clause relied upon by the landlord is of course for the benefit of the landlord only when the landlord has not caused the situation which led to the wrongful final order in its favor.
The order should be reversed, with twenty dollars costs and disbursements, and partial summary judgment should be granted as prayed for.
Finch, P. J., Martin, O’Malley and Glennon, JJ., concur.
Order reversed, with twenty dollars costs and disbursements, and motion granted.